LEASE AGREEMENT BETWEEN THE CITY OF RAPID CITY AND TKRS PROPERTIES, LLC For and in consideration of the mutual promises and agreements contained herein, the CITY OF RAPID CITY, 515 W. Boulevard, Rapid City, South Dakota 57701, a municipal corporation ( City or Lessor ), agrees to lease to TKRS PROPERTIES, LLC, of 101 New York Street, #A, Rapid City, South Dakota 57701, a limited liability company organized under the laws of the State of South Dakota ( Lessee ), the property hereinafter described as the demised premises subject to the terms, conditions, and stipulations herein provided. I. DEMISED PREMISES The demised premises leased to the Lessee shall consist of a portion of the following parcel: Tract 25 Less Lots H1 and H2, Rapid City Greenway Tract, Rapid City, Pennington County, South Dakota. The Premises is limited to that area of the above-described parcel that consists of a parking lot, a 10 foot perimeter around the parking lot, and the northern 10 feet of the above-described parcel where a fence is constructed ( the Premises ), and Lessee s obligations and rights apply only to the Premises. II. TERM The term of this Lease shall begin on the date of execution and end on December 31, 2022. The Lease may automatically renew for a renewal term of five (5) years no more than two (2) times, unless either party gives the other party written notice of termination at least sixty (60) days prior to the expiration of the term. III. LEASE AMOUNT Lessee agrees to pay to Lessor as rent for the premises the sum of One Thousand Four Hundred Dollars ($1,400.00) beginning on the first day of July, 2016, and annually thereafter until the termination of this Lease without delay, deduction, or default. For the first renewal term, the Lease amount shall be $1,500. For the second renewal term, the Lease amount shall be $1,600. IV. PURPOSE The Premises is leased to the Lessee for the purposes of maintaining a parking lot and constructing and maintaining a continuous chain link fence along the northern boundary of the Premises, behind Lessee s business. Lessee shall not permit parking on said lot between the hours of 2:00 a.m. and 5:00 a.m.
V. IMPROVEMENTS Lessee shall make no changes, alterations, or improvements without prior written consent of Lessor. The parties acknowledge that any permanent improvements to be placed on the Premises shall have prior approval from the City and shall meet all applicable City codes and ordinances. Lessee will be responsible for obtaining all necessary permits and approvals and for providing any required paper work, fees, and/or exhibits required to obtain the permits or approvals or to otherwise complete the planning and development review process. Any construction of improvements at or on the Premises, including those that may be located in the flood plain, shall be in conformity with the regulatory codes of the City and subject to the approval of the Director of Parks and Recreation or his designee. Lessor consents to permit Lessee to construct and maintain a six-foot chain link fence on the Premises. Lessor agrees to consult with and secure written permission from the Director of the Parks and Recreation Department or his designee as to the specifics of the fence construction, including location and design. The parties agree that all improvements to the Premises which are constructed as part of this Agreement will be owned by the City, although Lessee retains the right to remove the fence and retain ownership if it so desires. VI. REPAIRS AND MAINTENANCE Lessee represents that it has inspected and examined the demised premises and accepts it in its present condition. Lessee shall provide day-to-day maintenance and minor and major repair to damage caused by reasonable wear and tear by the elements. Lessee agrees to police the Premises and collect all trash, debris, and waste material on the Premises, and to perform all mowing and landscape maintenance of the Premises, including removal of weeds. If Lessee fails to fulfill its responsibilities under this Section, City may elect to terminate the Lease pursuant to Section IX. In the alternative, the Parks Division Manager can arrange for the Premises to be maintained in accordance with this Section and can charge Lessor for City s cost to perform such mowing/maintenance provided that (1) the Parks Division Manager determines the need for mowing and/or maintenance; (2) City provides notice to Lessee of its intent to perform the maintenance; and (3) Lessee fails to mow or perform the maintenance within three (3) days of receipt of the notice. City may perform this mowing and/or maintenance itself or it may arrange for a private contractor to do so; Lessee s obligations to pay for the cost under this Section are not dependent upon who performs the mowing/maintenance. 2
VII. ASSIGNMENT AND MORTGAGE Neither the demised premises nor any portion of it shall be sublet nor shall this Lease or any interest in it be assigned, hypothecated, or mortgaged by Lessee and any attempt at assignment, subletting, hypothecation, or mortgaging of this Lease shall be of no force or effect and shall confer no rights upon any assignee, sublessee, mortgagee, or pledgee. VIII. TERMINATION BY LESSOR Lessor may terminate this Lease at any time it should be determined that public necessity and convenience require it to do so by serving upon Lessee in the manner subsequently provided a written notice of its election to so terminate, which notice shall be served at least sixty (60) days prior to the date named for such termination. IX. DEFAULT In the event that Lessee shall be in default of any lease payment or in the performance of any of the terms and conditions agreed to be kept and performed by Lessee, then Lessor may terminate this lease immediately and may enter upon the premises and remove all property. Upon such default, Lessee shall not be entitled to any money paid or any part of that money. In the event Lessor shall bring an action to enforce any of the terms of this Lease or to obtain possession of the Premises by reason of any default of Lessee or otherwise, Lessee agrees to pay Lessor all costs of such legal action. X. EXPENSE City shall assume no expenses as a result of this Agreement or any of the operations of Lessee. XI. LESSOR MAY ENTER Lessee agrees that Lessor, its agents or employees, may enter upon the Premises at any time during the term or any extension of it for the purpose of inspection, digging test holes, making surveys, taking measurements, and doing similar work deemed necessary by Lessor. XII. FLOOD HAZARD DISTRICT Lessee recognizes that the Premises lie within a flood hazard area and accepts said Premises at its own risk. XIII. HOLD HARMLESS AND INDEMNITY Lessee shall hold the City harmless from any damage or liability arising out of the use of the premises by Lessee or its agents, employees, invitees, permittees, successors, 3
and assigns or any other person using the Premises. Lessee further agrees to indemnify and defend the City against any and all claims arising from the operation or use under this lease of the described Premises by it or its agents or employees or any other person using the premises. XIV. INSURANCE Lessee agrees to purchase and maintain liability insurance in amounts required by the City. City shall timely notify Lessee of any change in requirements for insurance coverage, and Lessee shall provide verification of such coverage within 60 days of receipt of City notice. The City shall be named an additional insured in said policy or policies, and the Lessee shall furnish to the City evidence of insurance by a certificate of insurance of required coverage. At the time this Agreement is signed, Lessee shall purchase and maintain a policy of public liability insurance, with the City named as an additional insured, in the amount of One Million Dollars ($1,000,000.00). XV. GENERAL CONTRACT TERMS 1. Construction and Venue. This Lease shall be interpreted under the laws of the State of South Dakota. Any litigation under this Lease shall be resolved in the circuit court of Pennington County, State of South Dakota. 2. Waiver. Waiver by either party of any default in performance of any of the terms, covenants, or conditions contained here shall not be deemed a continuing waiver of that default or any subsequent default. 3. Compliance with Laws. Lessee agrees to comply with all laws, ordinances, rules, and regulations that may pertain to the Premises and its use. 4. Headings. The headings and numbering of the different paragraphs of this Lease are inserted for convenience only and are not to control or affect the meaning, construction or effect of each provision. 5. Amendments. This Lease may only be amended by a written document duly executed by all parties. 6. Entire Agreement. This Lease, along with any attachments, constitutes the entire agreement between the parties and supersedes all prior negotiations, agreements and understandings, whether oral or written. This Lease supercedes any previously existing lease agreement between the parties. 7. Severability. If any provision of this Lease is held unenforceable by a court of competent jurisdiction, such holding shall not affect the remaining provisions of this Lease, which shall remain in full force and effect. 4
8. Relationship Between the Parties. Lessee is an independent contractor of the City. This Lease does not create an employment relationship between the City of Rapid City and Lessee or its agents or employees. Nothing contained in this Lease is intended to create a partnership or joint venture between Lessee and the City of Rapid City. No agent of Lessee shall be the agent of the City, and Lessee covenants that it will not take any action in the name of, or by holding itself out as the agent of, the City of Rapid City. 9. Time of Essence. Time is of the essence of this Lease. CITY OF RAPID CITY By: Steve Allender, Mayor ATTEST: Finance Officer (SEAL) State of South Dakota ) SS. County of Pennington ) On this the day of, 2016, before me, the undersigned officer, personally appeared Steve Allender and Pauline Sumption, who acknowledged themselves to be the Mayor and Finance Officer, respectively, of the City of Rapid City, a municipal corporation, and that they as such Mayor and Finance Officer, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing the name of the City of Rapid City by themselves as Mayor and Finance Officer. IN WITNESS WHEREOF, I hereunto set my hand and official seal. My Commission Expires: (SEAL) Notary Public, South Dakota 5
TKRS PROPERTIES, LLC By: Its: State of South Dakota ) SS. County of Pennington ) On this the day of, 2016, before me, the undersigned officer, personally appeared, who acknowledged himself/herself to be the of TKRS PROPERTIES, LLC, a limited liability company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing the name of TKRS PROPERTIES, LLC by himself/herself as. IN WITNESS WHEREOF, I hereunto set my hand and official seal. My Commission Expires: (SEAL) Notary Public, South Dakota 6